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The Grand Justices provided a uniform Interpretation regarding whether a separate agreement between an employer and an employee on working time which is not submitted to the government for reference is still subject to restrictions under relevant provisions of the Labor Standards Law (Taiwan)

The Council of Grand Justices under the Judicial Yuan rendered Interpretation No. 726 of November 21, 2014 to collectively address the issue of whether a separate agreement between an employer and an employee on working time which is not submitted to the government for reference is still subject to restrictions under relevant provisions of the Labor Standards Law.

According to the Interpretation, in case of other agreements between an employer and an employee on the working time, regular holidays, leaves and night time work of females, such agreements shall be submitted to local competent authorities for reference in accordance with Article 84-1 of the Labor Standards Law. This is a mandatory requirement. If such submission is not made to local competent authorities for reference, such agreements cannot exclude the restrictions under Articles 30, 32, 36, 37 and 49 of the same law. This can result in public law results unfavorable to an employer. In the event of any civil dispute with a separate and unreported agreement in place on work hours and other matters in a specific case, the court should certainly make proper adjustments in accordance with Article 30 of the Labor Standards Law to reflect the legislative objective of protecting the rights and interests of workers and to calculate wages in accordance with Articles 24 and 39 of the same law.

The reasons of the Interpretation indicate that "the people's right of existence, the right of work and the right of property shall be guaranteed" under Article 15 of the Constitution. The Labor Standards Law is the minimum set of standards for terms of labor that seek to protect the rights and interests of workers, enhance employment management relations, and promote social and economic development. Article 84-1 of the Labor Standards Law mentioned above specifically requires an announcement by the central competent authority and application to local competent authorities for reference as a precondition to prevent any abusive agreement on the scope of special work between an employer and an employee to thoroughly protect the rights and interests of workers. As previously stated, for special work which has been approved and announced, if an employer and an employee start to perform such work without completing the submission procedure for the mutual agreement pursuant to law, public law results not favorable to the employer may take place. Since the regulation directly regulates the essence of labor relations, it should be deemed a regulation that has direct civil effect on labor relations. Therefore, such requirement at issue, namely "applying to the local competent authorities for reference," should be a compulsory requirement within the meaning of Article 71 of the Civil Code.

It is also pointed out in the reasons of the Interpretation that a separate agreement between an employer and an employee on matters such as work hours may be quite complex and may contain provisions favorable and unfavorable to a worker. According to the gist of Article 71 of the Civil Code and Article 1 of the Labor Standards Law, it is not possible to directly conclude that a separate agreement between an employer and an employee is invalid simply on the ground that such agreement has never been filed for reference. Therefore, in the event of a civil dispute when a separate agreement on matters such as work hours has not been filed for reference, the court should make proper adjustments and calculate wages in accordance with Articles 24 and 39 of the same law in a specific case pursuant to Article 30 of the Labor Standards Law to reflect the legislative objective of protecting the rights and interests of workers.